This guest blog iswritten by Anne-Marie Verwiel and Karlijn van der Voort, defense lawyers specialized in international criminal law who are monitoring the proceedings at the Special Tribunal for Lebanon. For more information, see the Special Tribunal for Lebanon Blog. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

Introduction

In a completely unexpected decision earlier this month, the Appeals Chamber of the Special Tribunal for Lebanon (STL), only consisting of three judges, ruled that it has jurisdiction to prosecute legal persons, such as corporations, for contempt of court.

The STL has been created to prosecute those suspected of involvement in the bombing of February 14, 2005 in Beirut that killed former Prime Minister Rafic Hariri and 21 others, and injured many others (as well as potential connected cases). The STL has indicted five members of Hezbollah for their alleged involvement in this attack (the case against Ayyash et al.). In the absence of their arrest, a trial in absentia has started in January of this year, a unique feature in international criminal law, which has not been employed at any other international tribunal. In addition to the main case, the STL has also instigated contempt proceedings against several members of the Lebanese media, who are accused of having published names of individuals alleged to be witnesses in the main case.

In an earlier blog, we set out the details of the contempt cases. There are two separate contempt cases against two journalists and their news corporations, which concern similar facts. The first case carries number STL-14-05 and deals with the prosecution of NEW TV S.A.L. and Ms. Karma Mohamed Tahsin Al Khayat for having published names of individuals alleged to be witnesses before the Tribunal. This information was broadcasted on websites, TV programs, and YouTube. Case number STL-14-06 concerns the same allegations and is directed against Ahkbar Beirut S.A.L. and Mr. Ibrahim Mohamed Al Amin. In the latter case, the defendant Mr. Al Amin is currently in a fight with the Tribunal over his representation (see our latest blog on this issue). If convicted, the two natural persons charged with contempt face a maximum sentence of seven years in prison, a fine of €100,000, or a combination of both. The legal persons can only be fined for their role in the contempt case.

The current decision by the Appeals Chamber on jurisdiction concerns the case against NEW TV S.A.L. and Ms. Al Khayat. The most unexpected element thereof is the fact that the Tribunal has decided it cannot only prosecute Ms. Al Khayat, but also her media corporation, NEW TV S.A.L.

The initial Contempt Judge David Baragwanath included legal persons in his indictment, despite the fact that the applicable provisions of the STL do not explicitly provide for the possibility to prosecute legal persons for breach of Rule 60bis of the Rules of Procedure and Evidence (Contempt and Obstruction of Justice). Judge Baragwanath however found that there is nonetheless an “international trend” toward criminal liability for legal persons, particularly with respect to contempt cases, in which corporate entities hold great power in their ability to publicly disseminate information. The Defense then challenged the Tribunal’s jurisdiction to hear cases of contempt against legal persons, and subsequently appointed Contempt Judge Nicola Lettieri found that the Tribunal lacks such jurisdiction, while at the same time certifying appeal to his finding.

In short, the Appeals Chamber found that there exists ambiguity with respect to the term “person” in Rule 60bis. The Appeals Chamber interpreted the meaning thereof in accordance “with the spirit of the Statute”, while Judge Walid Akoum, dissenting, opined that the principle of in dubio pro reo should prevail, meaning that if the law may be interpreted in two ways, the version favorable to the accused should prevail.

Appeals Chamber Majority Decision

Admissibility

The first issue the Appeals Chamber considered concerned the admissibility of the appeal, after the Contempt Judge had proprio motu (on his own initiative) certified the appeal. The Contempt Judge had indicated that:

[I]t is in the interests of justice to ensure that appellate resolution of this matter be sought without delay. I therefore certify the following issue: whether the Tribunal in exercising its inherent jurisdiction to hold contempt proceedings pursuant to Rule 60 bis has the power to charge legal persons with contempt.

The Appeals Chamber concluded it indeed has jurisdiction over this issue.

Interpretation of the Rules

The Appeals Chamber refers to Rule 3 of the Rules of Procedure and Evidence, which provides the manner in which the rules shall be interpreted in case of any ambiguity or lacuna in the Rules. In the first place, they shall be interpreted “in a manner consonant with the spirit of the Statute,” and, in order of preference, with the principles of interpretation laid down in customary international law as codified in the Vienna Convention on the Law of Treaties, international human rights standards, the general principles of international criminal law and procedure, and, as appropriate, the Lebanese Code of Criminal Procedure. Rule 3(B) explicitly adds that any ambiguity which cannot be solved according to the provisions of Rule 3(A) must be interpreted as is considered the most favorable to the suspect or accused, the abovementioned principle of in dubio pro reo.

Merits of the Appeal

First, the Appeals Chamber considered it has inherent power to prosecute for contempt, from its status, character and function as a judicial institution. It states that it does not derive its substance and legitimacy from Rule 60bis, “but rather Rule 60 bis is a manifestation of this power and not its source” (para. 32). It considers therefore that its jurisdiction over contempt is outlined but not confined by Rule 60bis. The decision further evolves around the interpretation of the word “person” in Rule 60bis, and whether or not that includes legal persons, or only natural persons.

Regarding earlier relevant case law, the Appeals Chamber found that the fact that such case law is not available from the ad hoc tribunals “only means that this issue has not been previously adjudicated and determined by an international tribunal” (para. 41). In contradiction to the Contempt Judge’s initial decision, the Appeals Chamber concludes that there is a “growing number of states criminalizing the acts and conducts of legal persons” (para. 44). It is noteworthy that, in a footnote to that comment, the Appeals Chamber quotes an Italian scholar, Franco Bricola, who said over 40 years ago that “the principle societas delinque non protest [a legal entity cannot be blameworthy] has no ontological value but is an expression of the force of the laws of economic power: when the latter is not at stage, the principle falls apart” (see footnote 83). Interestingly, in reflecting on this trend, the Appeals Chamber notes that “there is an emerging shared international understanding on the need to address corporate responsibility,” and “[w]e consider that international human rights standards and the positive obligations arising therein are equally applicable to legal entities” (para. 46).

The language employed by the Appeals Chamber mirrors the strong will of the judges to hold corporations accountable and to support this trend in (international) criminal law. It speaks of “an emerging international consensus regarding what is expected in business activity, where legal persons feature predominantly, in relation to the respect for human rights” (para. 46). The panel goes so far as to conclude that “corporate liability for serious harm is a feature of most of the world’s legal systems and therefore qualifies as a general principle of law”, and “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

The moral component and purpose-driven approach of the Appeals Chamber’s decision is clearly reflected in its findings that:

[T]he prosecution of natural persons, rather than the legal persons that they serve, would fail to underline and punish corporate cultures that condone and in some cases encourage illegal behaviour. (…) Without the ability to address such considerations, the authority of the Tribunal to deal with contempt and obstruction of justice could be impeded. (…) Therefore, it would be contrary to the interests of justice, in our view, to shield legal persons when Rule 60bis does not restrict our inherent power to punish contemptuous acts. No person, natural or legal, should be placed above the law or be allowed to operate outside of the rule of law” (paras. 83-84).

The Appeals Chamber indeed admits that there is ambiguity in the definition of the word “person” (para. 85) but by analyzing case law from various countries around the world it concludes that, after such analysis, there is no longer any ambiguity. The Appeals Chamber thus concludes that its inherent jurisdiction over contemptuous conduct “allows the Appeals Panel to interpret the term “person” to include legal entities in the exercise of the Tribunal’s inherent power over contempt proceedings” (para. 59).

Dissent by Judge Akoum

Judge Akoum dissents from the majority’s decision, and his dissenting opinion gives a clear overview of the problematic aspects of the reasoning that is contained in the majority decision. Although Rule 3 requires taking into account international human rights standards and the general principles of international criminal law and procedure when interpreting a rule, the majority decision does not seem to take into account the principles of legality and foreseeability as part of the fundamental rights of the accused. The fact that Rule 3(B), only applicable in case of ambiguity, provides an explicit reference to the most favorable interpretation of the accused, does not mean that core principles of criminal law that protect accused persons can be completely ignored when interpreting a rule.

Judge Akoum eloquently points to this major flaw in the majority decision when stating that:

Since Rule 3 (A) commands us to consider the spirit of the Statute as a whole, a teleological approach in this instance must also take into full account applicable international human rights standards – the rights of the accused. Other considerations cannot force us to interpret ambiguous criminal provisions in a manner that goes against an accused (in this case a corporate legal person) (para. 15 of the dissent).

Judge Akoum consequently dissents from the majority’s decision and its interpretation of the word “person.” In his view, the interpretation thereof cannot be explained through the normal channels, and thus, the principle of in dubio, pro reo prevails, suggesting the interpretation most favorable to the accused. Judge Akoum considers that, in his view, the majority was incorrect in concluding that the inherent contempt power of the Tribunal can be broader than the jurisdiction ration personae as contained in the Statute. He argues that such conclusion would lead to the most unreasonable result that a legal entity can be prosecuted for contempt at this Tribunal, but not for the core crimes relating to the killing of former Prime Minister Rafik Hariri and others (para. 4 of the dissent).

In analysing the majority decision Judge Akoum rightly considers that (para. 17 of the dissent):

It is telling – and definitive – that the examples cited by the majority of the Appeals Panel of corporate criminal liability, whether it be in treaty law or domestic criminal law, have included express and clear provisions relating to the liability of legal persons for criminal offences.

Judge Akoum further noted that absent are “modern examples where corporate criminal liability has been held to exist when only the word “person” has been used in the relevant treaty or domestic law to include legal entities – as we hold in the matter before us” (para. 21 of the dissent). He concludes that the majority’s conclusion to include corporations in the definition of “persons” leads to a violation of the principle of nullum crimen sine lege script (no punishment without a prior written law).

Conclusion

It seems that the no doubt well-intended concern of the judges of the Appeals Chamber about the behavior of corporations has troubled its legal analysis of the issue at hand. Its idealistic approach is reflected in sentences such as in para. 82, where the Chamber holds that: “In this discussion, we simply cannot ignore the reality that many corporations today wield far more power, influence and reach than any one person.” And, “punishing only natural persons in such circumstances would be a poor response where the need for accountability lies beyond any one person” (para. 83).

It seems that the majority has a strong incentive to hold corporations accountable, to such extent that that desire is stronger than keeping up fundamental principles of criminal law and the protection of the rights of the accused, in this case, the corporate entity. While we do not oppose the development of corporate accountability for human rights violations and other violations of (international) law per se, this decision probably does not provide a strong legal basis for the future development of corporate criminal liability.